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New Yorker Writer Cleared of Libeling Psychoanalyst : Courts: Jury rules Janet Malcolm did not intentionally err in using two false quotes. Decision ends 10-year case.

November 03, 1994|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — A federal jury here cleared New Yorker writer Janet Malcolm of libeling a controversial psychoanalyst Wednesday after a protracted legal battle that rocked the psychoanalytic community and put journalistic ethics on trial.

The jury of seven women and one man found that two of five quotations challenged by psychoanalyst Jeffrey Moussaieff Masson were false, but decided that the writer had not intentionally erred in her 1983 New Yorker profile.

The 10-year-old case ended in a mistrial last year after a different jury found that Malcolm had committed libel but deadlocked on the amount of damages to award Masson.

Malcolm interviewed Masson repeatedly after his renegade views about Sigmund Freud cost the former Sanskrit scholar his prestigious job as curator of the Freud Archives in London, where Freud's research, letters and other documents are stored.

Malcolm's 48,500-word article portrayed Masson as an egomaniac obsessed with sex. Among other things, he had claimed that he had sex with more than 1,000 women, a statement he did not contest.

During both trials Malcolm testified that she had compressed quotations taken from different times and settings into a single monologue, a controversial practice criticized by many journalists.

Masson sued Malcolm and the New Yorker for $7.5 million, contending that her portrait had made him a laughingstock in the academic community. The magazine was dropped from the case after the first jury found that Malcolm was an independent contractor, not an employee, when she wrote the article.

Malcolm said she was pleased that the trial had ended.

"I am glad this is over," said Malcolm, 59, who has continued to write for the New Yorker, "and now I can go back to do what I love doing best, which is writing."

Asked whether the legal fight has changed her journalistic practices, she said, "Absolutely not."

Charles O. Morgan Jr., Masson's lawyer, described his client as "very disappointed."

"I really thought I was going to win it," said Morgan, a renowned libel lawyer, "but I have been trying cases too long not to know that anything could happen."

Morgan said he has not decided whether to appeal the verdict. Because of its seemingly interminable nature, the long-running libel case has been compared to Jarndyce vs. Jarndyce from Charles Dickens' novel "Bleak House," in which a family legal dispute spanned generations.

Fernando Leyva, 44, a juror in the second trial, said the panel, after reviewing the writer's taped interviews with Masson, believed that he "just dug a hole for himself" and could have been portrayed even more negatively. "If she really wanted to make him look bad," said Leyva, a telephone company systems analyst, "she had the direct quotes to do it."

However, Leyva said, the panel was suspicious about whether Malcolm had invented some of the challenged quotations because they were not on tape and she had lost her original notes.

Instead, he said, three were contained in a four-page section of typed material that Malcolm said she had taken from her handwritten notes. Malcolm said she had used another quote from memory.

After deliberating 3 1/2 days, the jury decided to believe Malcolm because there was no evidence to prove she made up the quotations, Leyva said.

The jurors faulted Malcolm on two points: for using a quotation from Masson they believed wrongly reflected his views on a speech he gave about the sterility of psychoanalysis, and for taking another quotation out of context.

Leyva said Masson had contradicted himself during the more than 40 hours of taped interviews with Malcolm, but the writer should have used the quotation that most accurately reflected the truth.

Because Masson is a public figure, he had to prove that Malcolm intentionally distorted his comments or acted with reckless disregard for the truth.

Leyva said the jury did not feel she had acted maliciously, in part because she did not include more damaging material she had on tape.

He said at least one juror seemed inclined to doubt Masson because she was so disgusted with his sexual exploits. The first jury that found Masson had been libeled also had seven women and one man.

Gary L. Bostwick, an attorney for Malcolm, said he believed the second jury reached a different conclusion because Malcolm prepared more carefully for her testimony in the retrial, and he spent more time explaining the legal requirements for a libel verdict.

He also said he argued more extensively during the retrial that Malcolm had not believed that any of the quotations were wrong when she wrote the profile.

Malcolm's technique of stringing together quotations from different times and places without using ellipses apparently did not bother the jury. The writer used this technique in describing a lunch with Masson at Berkeley's famed Chez Panisse restaurant, where Masson complained that the writer even fabricated what he ate for lunch.

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